Environmental Civil Remedies

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The Need For Expert Evidence To Make Out An Innocent Landowner Defense Under CERCLA

As every litigator knows, evidence almost always tells a story that is untidy and riddled with loose ends. This was illustrated by a recent innocent landowner case in California — Coppola v. Smith. There, a company had...more

Commonwealth Court Rejects Constitutional Challenge to Natural Gas Production on State-Owned Lands and Use of Lease Funds in...

The Commonwealth Court of Pennsylvania has dismissed a lawsuit filed by the Pennsylvania Environmental Defense Foundation (PEDF) to declare unconstitutional and enjoin natural gas extraction from State park and forest land....more

Equal Access To Justice Act: Why Prevailing On Only 1 Out Of 3 Claims In Oregon Forestry Case Can Still Be Quite Rewarding

Generally, a failure rate of two-thirds would indicate that what you are doing isn't profitable. However, when dealing with environmental law, that clearly isn't the case. In Cascadia Wildlands v. Bureau of Land Management,...more

Industry Challenging County and Municipal Bans on Multiple Fronts

Municipalities and counties have joined forces with environmental groups to halt hydraulic fracking and related well stimulation techniques. Environmental groups have filed suits under the National Environmental Policy Act...more

First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management...

In a decision filed December 2, and later ordered published on December 30, 2014, the First District Court of Appeal affirmed the Mendocino County Superior Court’s judgment denying a petition for writ of mandate challenging a...more

EPA Releases Annual Environmental Enforcement Results

December 18, 2014, marked the release of the U.S. Environmental Protection Agency’s (EPA) annual environmental enforcement and compliance results. See News Release, U.S. Environmental Protection Agency, EPA Announces 2014...more

High Speed Rail Moves Forward Without CEQA Review

The Surface Transportation Board (“STB”) issued a declaratory order in a 2-1 vote last Friday, finding that the California Environmental Quality Act (“CEQA”) is categorically preempted by federal law, as it relates to the...more

Policy Observer - December 2014

Giving and Receiving: Insuring Company-Sponsored Volunteerism: This is the time of year when we are reminded of the importance of giving. Many companies not only donate generously to nonprofits and community programs,...more

Louisiana Town Files Second Suit to Block Oil and Gas Well

The Town of Abita Springs filed a suit on December 1, 2014, seeking a declaratory judgment to block the drilling of an oil and gas well about 40 miles north of New Orleans into the Tuscaloosa Marine Shale. Earlier this year,...more

DTSC’s Lien Procedure Found to Violate Due Process

In Van Horn v. Department of Toxic Substances Control (“DTSC”), a California Court of Appeal found that DTSC’s procedure for imposing liens on property under the California “Superfund” law violates due process of law....more

New York District Court Holds Lessee Not Liable Under CERCLA as an Owner

A New York federal district court recently held that a lessee will not be found liable under CERCLA as an owner where the lessee does not possess sufficient indicia of ownership. (Next Millennium Realty, LLC v. Adchem Corp.,...more

FERC Issues Annual Enforcement Report

On November 20, the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement issued its Report on Enforcement, detailing its activities in 2014. These activities continued to focus on three areas...more

Condemnation and Contamination: The Spectre of Double Liability

Agencies acquiring private property for a public project conduct thorough investigations to determine whether the property has environmental contamination. If contamination is found, the question arises whether evidence of...more

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with...more

What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena...

The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new...more

Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835) The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a...more

Opponents of Arena Project Foul Out

On November 20, 2014, the Third District Court of Appeal (Court) handed a partial victory to the City of Sacramento (City), rejecting petitioners' appeal and thereby authorizing the continued construction of the Sacramento...more

California Federal Court Dismisses CERCLA Claims and Strikes Request for Attorneys’ Fees

In N. Cal. River Watch v. Fluor Corp., __F.Supp.3d__, 2014 WL 4954638 (N.D. Cal. Oct. 2, 2014), a Northern California district court dismissed Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)...more

Judge Barbier BP Attempt to Limit Clean Water Act Fines

On September 4, 2014, District Court Judge Carl Barbier issued his “Findings of Fact and Conclusions of Law – Phase One Trial” in the Deepwater Horizon oil spill litigation. In his 153 page opinion, Judge Barbier found BP...more

California Trial Court Orders New Trial On Claim that Recology Violated CFCA

A California trial court recently overturned a jury verdict finding Recology San Francisco liable for violating the California False Claims Act (CFCA) and granted Recology’s motion for a new trial. The court’s ruling comes...more

Energy Newsletter - November 2014

In This Issue: - First AIPN Model Contract for Unconventional Resource Operations - A Cautionary Tale: English Courts Further Depart from a Traditional Approach to Liquidated Damages in Unaoil v...more

Minnesota Federal Court Clarifies Pleading Standard in Vapor Contamination Case

In an opinion that may help clarify the jurisdictional and pleading requirements for plaintiffs seeking damages and injunctive relief for alleged injuries from vapor intrusion, the federal district court in Minnesota denied a...more

New Jersey Landowner Forfeits Damages by Allowing Defendant to Remediate

In what may be a cautionary tale for owners of contaminated property, a New Jersey appellate court has ruled that a landowner forfeited any claim to property damages when he allowed the responsible party to perform...more

Texas High Court Finds Expert Opinion on Stigma Damages Too Speculative

Clarifying when expert testimony on alleged diminution in property value becomes legally sufficient to support a so-called “stigma” claim, the Texas Supreme Court struck down a $350,000 jury verdict based on environmental...more

The Construction Advantage – Issue 10

Wyoming Supreme Court Concludes Contractor to Pay For Damages In Excess of Original Project Cost - An opinion released in a mid-August from the Wyoming Supreme Court concluded that repair damages were appropriate in a...more

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